Health care providers and emergency responders under the Families First Coronavirus Response Act

Since the passage of the Families Coronavirus Relief Act (“FFCRA” or the “Act”) on March 18, 2020, with an effective on April 1, 2020, employers have been grappling with coverage and paid leave issues provided under the FFCRA. Of course, the FFCRA expands who is a covered “employer” under the FMLA and provides for paid sick leave under the circumstances provided for in the Act (see more).  
 
While the DOL has yet to publish formal regulations under the Act, on March 24th and 27th, respectively, the DOL issued guidance in the form of questions and answers that cover critical topics such as who qualifies as a covered employer and employee under the Act, under what circumstances are employees entitled to 80 hours of emergency paid sick leave (EPSL), qualifying conditions under which employees are entitled to Emergency FMLA (EFMLA) paid leave, documentation that employers may require for use of paid leave, the amounts to be paid employees who are eligible for EPSL and/or EFMLA, among other key issues (See here).
 
Also, on March 27th, the DOL addressed for the first time employees that qualify as a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied upon as a qualifying reason for paid sick leave. Further, the DOL defined who is a “health care provider” and an “emergency responder” under the Act and therefore subject to exclusion by their employer from paid sick leave and/or expanded family and medical leave. The noted guidance is set forth below:
 
  • Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

    The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
     
  • Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

    For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

    This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

    To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
     
  • Who is an emergency responder?

    For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.  
 
As the April 1st effective date approaches, this post provides further clarity for employers and, in particular, health care institutions as to who is a “health care provider” and an “emergency responder” under the FFCRA and thus subject to exclusion under the Act. Indeed, the DOL has currently given a very broad definition of who qualifies and therefore health care and medical employers need to make informed decisions as to just who is a “health care provider” and/or an “emergency responder” when making determinations under the FFCRA. 
 
The McDonald Hopkins Labor and Employment Response Team is available to assist in making such determinations and will continue to monitor developments and provide additional updates on the DOL’s guidance and other employment related issues.
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